The Altamont Enterprise - New York State Court of Appealshttp://www.altamontenterprise.com/tags/new-york-state-court-appeals
enTown bans on gas and oil industry allowedhttp://www.altamontenterprise.com/news/regional/07032014/town-bans-gas-and-oil-industry-allowed
<div class="field field-name-field-author field-type-taxonomy-term-reference field-label-hidden">by <a href="/author/marcello-iaia" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Marcello Iaia</a></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p><span style="line-height: 1.6em;">ALBANY — Town bans that would prohibit </span>hydrofracking<span style="line-height: 1.6em;"> were upheld in a 5-2 decision by the state’s highest court on Monday.</span></p>
<p>The majority opinion, written by Judge Victoria A. Graffeo, said the state’s Environmental Conservation Law does not preempt local zoning laws prohibiting gas and oil extraction activities within town boundaries but relates to the regulation of how it can occur.</p>
<p>The plaintiffs — the Norse Energy Corporation and Cooperstown Holstein Corporation that had drilling leases and wanted hydrofracking allowed in southern Central New York towns with bans — argued that the state statute’s supercession clause describing “all local laws” applied to the municipal zoning laws in the case. Judge Eugene F. Pigott did the same in his dissent, with Judge Robert S. Smith concurring.</p>
<p>“The Towns both studied the issue and acted within their home rule powers in determining that gas drilling would permanently alter and adversely affect the deliberately cultivated, small-town character of their communities,” Graffeo wrote.</p>
<p>Arguments heard from lawyers in two separate cases on June 3 cast the state’s Oil, Gas and Solution Mining Law for an against the towns of Dryden and Middlefield in central New York. Its supercession clause says, “The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.”</p>
<p>The decision weighs on the public debate over whether hydraulic fracturing should be allowed in the state. The executive branch has deliberated for several years over permitting the intensive process of extracting natural gas known as hydrofracking.</p>
<p>Towns in the meantime have passed moratoria or bans on hydrofracking, citing potential risks of polluting natural resources with the fluid pumped into shale formations or from the influx of people and heavy machinery used at the well pads.</p>
<p>“I think what opinions like this do is put issues to rest so that towns can act with confidence going forward,” said Dana L. Salazar, an attorney with the law firm Tabner, Ryan and Keniry, who is advising the Rensselaerville town board as it prepares revisions to its zoning law.</p>
<p>Rensselaerville, Berne, and Westerlo are planning to change their zoning laws to address hydrofracking in some way. Knox is in the process of revising its comprehensive plan, a guiding document for zoning laws. The town of Guilderland passed a ban on hydrofracking in 2012, although the town does not lie over the gas-rich Marcellus Shale formation that reaches to the southwestern corner of Albany County. Prospects for gas extraction are greater in the Southern Tier region of New York.</p>
<p>Councilman William Bichteman in Westerlo indicated at the May town board meeting that he doesn’t favor a ban on gas drilling. The board extended its moratorium on the process this month in order to further consider the issue.</p>
<h3><strong>Frew Run</strong></h3>
<p>Using a three-part analysis from a case where Frew Run Gravel Prods. took on the Town of Carroll, the court’s majority examined the supercession clause for what it plainly says, the intention of the whole statute, and the legislative history surrounding it.</p>
<p>In Frew Run, the court held that the phrase “local laws relating to the extractive mining industry” did not apply to local zoning ordinances, which apply instead to the use of the land within a municipality.</p>
<p>“Plainly, the zoning laws in these cases are directed at regulating land use generally and do not attempt to govern the details, procedures or operations of the oil and gas industries,” Graffeo wrote.</p>
<p>The plaintiffs in the case said that, if the Environmental Conservation Law’s supercession clause applied only to regulation of operations, it would not include the two exceptions given for local jurisdiction over local roads and real property taxes, which, they argued, were not related to operations.</p>
<p>“Local laws dictating the number of daily truck trips or the weight and length of vehicles bear directly on industry operations and would otherwise be preempted absent the secondary clause,” she wrote.</p>
<p>Graffeo cited real property tax law’s allowance for municipalities to tax oil and gas operations.</p>
<p>“Because these special taxes are based on the level of production, they can be viewed as affecting the operations of the oil and gas industry, such that it was reasonable for the Legislature to carve out an exception from the preemptive scope of the operative text,” wrote Graffeo.</p>
<p>Relating to the statute as a whole, the majority pointed to various technical parameters that the Department of Environmental Conservation is entrusted in the Environmental Conservation Law with regulating and enforcing.</p>
<p>In light of the overriding interest in a comprehensive energy policy for the state, which the plaintiffs argued would be disrupted by local zoning authority, Graffeo quoted from the Appellate Division, the middle-level court in a three-tiered system, when it upheld Dryden’s ban.</p>
<p>“The well-spacing provisions of the OGSML [Oil, Gas, and Solution Mining Law] concern technical, operational aspects of drilling and are separate and distinct from a municipality's zoning authority, such that the two do not conflict, but rather, may harmoniously coexist; the zoning law will dictate in which, if any, districts drilling may occur, while the OGSML instructs operators as to the proper spacing of the units within those districts in order to prevent waste.”</p>
<p>In his dissent, Pigott cited Frew Run, as well, writing, “we made clear that there is a distinction between zoning ordinances that regulate land use and local ordinances that regulate the mining industry. The former, which involve the division of the municipality into zones and the establishment of permitted uses within those zones, relate not to the extractive mining industry, but rather, to the regulation of land use generally.”</p>
<p>He went on to say that the laws passed in Dryden and Middlefield amounted to a “blanket ban” on an entire industry, with a high level of detail and without specified zones, which was regulation under the supercession clause of the Environmental Conservation Law.</p>
</div></div></div><div class="field field-name-post-date field-type-ds field-label-inline clearfix"><div class="field-label">Post date:&nbsp;</div><div class="field-items"><div class="field-item even">July 3, 2014</div></div></div><div class="field field-name-field-tags field-type-taxonomy-term-reference field-label-inline clearfix"><h3 class="field-label">Tags: </h3><ul class="links inline"><li class="taxonomy-term-reference-0" rel="dc:subject"><a href="/tags/hydrofracking" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">hydrofracking</a></li><li class="taxonomy-term-reference-1" rel="dc:subject"><a href="/tags/new-york-state-court-appeals" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">New York State Court of Appeals</a></li><li class="taxonomy-term-reference-2" rel="dc:subject"><a href="/tags/courts" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">courts</a></li><li class="taxonomy-term-reference-3" rel="dc:subject"><a href="/tags/zoning" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">zoning</a></li></ul></div><div class="easy_social_box clearfix vertical easy_social_lang_und">
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</div></div></div>Thu, 03 Jul 2014 19:48:55 +0000admin3404 at http://www.altamontenterprise.comAlbany County Surrogate's Court judge removal upheldhttp://www.altamontenterprise.com/news/new-scotland/07022014/albany-county-surrogates-court-judge-removal-upheld
<div class="field field-name-field-author field-type-taxonomy-term-reference field-label-hidden">by <a href="/author/lisa-nicole-viers" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Lisa Nicole Viers</a></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p>ALBANY — Cathryn M. Dyle won’t return to the bench, on June 26, the New York State Court of Appeals upheld a previous ruling by the State Commission on Judicial Conduct to revoke her judgeship on the Albany County Surrogate’s Court, where she had served since 2000.</p>
<p>There were nine instances where the state’s top court found Doyle, who lives in New Scotland, had committed misconduct which dealt with three different people, each a separate charge.</p>
<p>Thomas Spargo was a close friend of Doyle, and had been her attorney at one point as well as represented cases that went through her court. Spargo was removed from office by the Commission on Judicial Conduct in 2006 due to his activity soliciting money from lawyers who went through his court so he could pay his own court bills — a defense that stemmed from his electioneering for Berne Town Judge.</p>
<p>The opinion given by the Court of Appeals notes that Doyle is the godmother of Spargo’s son, and also that she was censured in 2007 due to her misleading and evasive testimony during the commission’s investigation into her role in Spargo’s solicitation activities. </p>
<p>The Court of Appeals also saw misconduct in Doyle’s actions regarding cases brought forth by her campaign manager, Matthew J. Kelly, while she was running for re-election for Surrogate’s Court in 2010. Kelly was also heavily involved in Doyle’s 2007 run for Supreme Court Justice.</p>
<p>Doyle also presided over cases submitted by her personal attorney William J. Cade, who represented Doyle in the case that resulted in her censure in 2007.</p>
<p>In her case before the Commission on Judicial Conduct last November, as well as her challenge of its decision to revoke her judgeship, Doyle’s petitioner, William J. Dreyer maintained that “prior to 2011, the ethics opinions were unclear as to a Surrogate’s disclosure or recusal obligations in nonadversarial matters,” the majority opinion by the Court of Appeals said. </p>
<p>“However,” the opinion continues, “a judge’s obligation to disqualify herself based on the appearance of impropriety has long been in place and has not been dependent on the nature of the proceeding.”</p>
<p>The majority opinion was agreed upon by Chief Judge Lippman and judges Susan P. Read, Robert S. Smith, Jenny Rivera, and Shelia Abdus-Salaam. Judge Victoria Graffeo took no part.</p>
<p>Judge Eugene F. Pigott, in his dissent, asserted “the charges here are few and minor and involve only an ‘appearance of impropriety’ and concededly resulting in no impropriety in-fact.”</p>
<p>Pigott held that censure would have been a more fitting sanction for Doyle’s misconduct than outright removal.</p>
</div></div></div><div class="field field-name-post-date field-type-ds field-label-inline clearfix"><div class="field-label">Post date:&nbsp;</div><div class="field-items"><div class="field-item even">July 2, 2014</div></div></div><div class="field field-name-field-tags field-type-taxonomy-term-reference field-label-inline clearfix"><h3 class="field-label">Tags: </h3><ul class="links inline"><li class="taxonomy-term-reference-0" rel="dc:subject"><a href="/tags/new-york-state-court-appeals" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">New York State Court of Appeals</a></li><li class="taxonomy-term-reference-1" rel="dc:subject"><a href="/tags/courts" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">courts</a></li><li class="taxonomy-term-reference-2" rel="dc:subject"><a href="/tags/cathryn-doyle" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">cathryn doyle</a></li></ul></div><div class="easy_social_box clearfix vertical easy_social_lang_und">
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</div></div></div>Wed, 02 Jul 2014 18:13:12 +0000reporter3368 at http://www.altamontenterprise.comSurrogate's Court judge challenges removalhttp://www.altamontenterprise.com/news/regional/06122014/surrogates-court-judge-challenges-removal
<div class="field field-name-field-author field-type-taxonomy-term-reference field-label-hidden">by <a href="/author/lisa-nicole-viers" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Lisa Nicole Viers</a></div><div class="field field-name-field-images field-type-field-collection field-label-hidden"><div class="field-items"><div class="field-item even"><div class="entity entity-field-collection-item field-collection-item-field-images clearfix" about="/field-collection/field-images/2395" typeof="">
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<div class="field field-name-field-image field-type-image field-label-hidden"><div class="field-items"><div class="field-item even"><a href="http://www.altamontenterprise.com/sites/default/files/styles/full/public/IMG_0231.JPG?itok=IpjFhau8" rel="lightbox[field_image][]" title=""><img typeof="foaf:Image" src="http://www.altamontenterprise.com/sites/default/files/styles/large/public/IMG_0231.JPG?itok=5cB3DB8X" width="300" height="200" alt="" /></a></div></div></div><div class="field field-name-field-image-description field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>— Photo from Court of Appeals video recording<br /><strong>Chief Judge Jonathan Lippman</strong> was the most prominent speaker of the seven judges on the New York State Court of Appeals during Cathryn Doyle’s challenge of the decision by the State Commission on Judicial Conduct to revoke her judgeship. The proceeding occurred last Thursday, and a decision is expected in late June or early July.</p>
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</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p>ALBANY — Last Thursday, the state’s top judges heard arguments surrounding the removal of Cathryn M. Doyle from her post as the Albany County Surrogate’s Court judge.</p>
<p>The State Commission on Judicial Conduct determined last November, by a vote of 8 to 2, that Doyle should have her judgeship revoked due to actions she took between 2007 and 2010. Doyle, who lives in New Scotland, is challenging this decision, and argues that the commission was incorrect in finding any misconduct in her actions.</p>
<p>The State Commission found that Doyle took judicial action in several cases where her impartiality could have been questioned due to her personal relationships with the other parties involved in the proceedings. Surrogate’s Court handles probate and estate proceedings.</p>
<p>The cases at hand include several involving Thomas J. Spargo, a former New York State Supreme Court Justice who was found guilty of two felony charges in 2009. His case was rooted in a 1999 race for town justice in Berne, during which the State Commission said that Spargo spent money on food, drinks, or tokens to influence Berne residents to vote for him.</p>
<p>He initially challenged the commission in federal court, arguing that its allegation had to do with the exercise of his First Amendment liberties. He lost his challenge on appeal. In the 2009 case, the prosecution convinced the jury that Spargo had orchestrated a plan to solicit funds from lawyers with cases before him in order to pay his own bills.</p>
<p>Last Thursday, the chief judge’s first question for Doyle’s lawyer was about her relationship to Spargo, which he described as “a very close, personal relationship.”</p>
<p>The cases also involve Matthew J. Kelly, who had a leadership role in Doyle’s 2007 campaign to be nominated as a Supreme Court Justice and was manager of her 2010 campaign for re-election as surrogate, and William J. Cade, previously Doyle’s lawyer.</p>
<p>Called by The Enterprise this week, Doyle declined comment.</p>
<p><strong>History</strong></p>
<p>In 2007, Doyle was censured by the State Commission on Judicial Conduct for taking action in and not recusing herself from an estate proceeding in which she did not disclose that the petitioner’s attorney, Cade, had previously been her lawyer.</p>
<p>Censure is a formal reprimanding of a public official for misconduct or inappropriate behavior.</p>
<p>In 2010, while she was running for Surrogate’s Court, Doyle told <em>The Enterprise</em>, “I think a censure is a great learning experience to teach you to be a better judge.” Of whether or not if affected her credibility, Doyle said at the time, “I don’t think it helps. Does it have a negative impact? I’m not sure.”</p>
<p>The formal written complaint that led to her losing her position as a judge was filed in September of 2012. Doyle had been a Surrogate’s Court judge in Albany County since 2001; surrogate’s judges are elected for 10-year terms, and she was re-elected in 2010 for a second term.</p>
<p>Also at issue in her challenge of the State Commission’s decision are cases in which Spargo was the attorney for petitioners in four estate matters that Doyle handled in her court.</p>
<p>Additionally, Spargo was representing Doyle in two lawsuits during one of his proceedings in her court.</p>
<p><strong>Unique circumstances</strong></p>
<p>During the proceedings last week, several on the panel of seven Court of Appeals judges noted that Surrogate’s Court is a special instance because it deals with estates and wills, and thus each case typically has only one side.</p>
<p>In many cases, the decision of a Surrogate’s Court judge relies completely on the law and there is neither room nor opportunity for anything to be interpreted or altered.</p>
<p>Doyle’s attorney, William J. Dreyer, said that recusing herself from the cases in which she had personal relationships with the other parties involved wouldn’t have made a difference because the decision she came to was the same that any other judge would have come to.</p>
<p>Speaking with <em>The Enterprise</em> in 2010, Doyle said a separate court to handle estates is important because in standard cases there is a living plaintiff and a living defendant, but in managing estates, there are living heirs and a decedent whose wishes must be honored. A judge has to ensure that the rights of the deceased are upheld, which takes a different approach, she said.</p>
<p>“Why should it have been a surprise to a judge that even in an uncontested proceeding that in certain respects is ministerial, why should that have been a surprise to a sitting surrogate that that’s a problem?” Lippman asked of Dreyer, regarding Doyle taking judicial action on cases in which she knew the other party.</p>
<p>“Is your basic argument here that the judge was sincere in what she did, and did not think she was doing anything wrong?” Lippman asked Dreyer.</p>
<p>“[She was] sincere, credible, and candid…” Dreyer responded.</p>
<p>He also noted the thousands of cases she handled compared to the handful for which she was cited.</p>
<p>Later in the proceedings, Judge Eugene F. Piggott, Jr., said of the ministerial cases in question, “They were filings, and I didn’t see where anybody was hurt by them.”</p>
<p>However, the respondent for the State Commission on Judicial Conduct, Edward Lindner, quoted from the laws regarding when a judge must recuse herself, and made clear his view that a judge must follow that law, no matter how straightforward or ministerial the case at hand.</p>
<p><strong>“Wordsmithing and fencing”</strong></p>
<p>Some of the back-and-forth among the judges and attorneys at the proceeding turned on nuances: of when a person helping organize an event becomes a campaign manager, of whether and when a person can be said to be willfully neglecting a known rule verses misinterpreting it.</p>
<p>“The wordsmithing and the fencing is the problem here,” said Lindner.</p>
<p>Regarding Kelly’s involvement in Doyle’s campaigning activities during the time he appeared in her court, Lippman said, “He was in the mode of someone being very active in her campaign.”</p>
<p>In 2010, after appearing in Doyle’s court, Kelly was officially named her campaign manager.</p>
<p>The same year, the commission council approached Doyle regarding her actions and justifications for not recusing herself in these cases.</p>
<p>Doyle asked for guidance from the commission at this time, and wanted to be told if she were doing anything wrong.</p>
<p>After this interaction, when Cade came back to Doyle’s court with a case more substantive than previous cases, Doyle recused herself.</p>
<p>She also recused herself in cases involving Kelly, both before and after the commission approached her about her actions.</p>
<p>“Did she do anything that looks like doing Kelly a favor in that time?” Judge Robert S. Smith asked of Lindner.</p>
<p>“No,” Lindner replied.</p>
<p>The Court of Appeals is expected to hand down a decision on the case in late June or early July.</p>
<p> </p>
</div></div></div><div class="field field-name-post-date field-type-ds field-label-inline clearfix"><div class="field-label">Post date:&nbsp;</div><div class="field-items"><div class="field-item even">June 12, 2014</div></div></div><div class="field field-name-field-tags field-type-taxonomy-term-reference field-label-inline clearfix"><h3 class="field-label">Tags: </h3><ul class="links inline"><li class="taxonomy-term-reference-0" rel="dc:subject"><a href="/tags/cathryn-m-doyle" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">cathryn m. doyle</a></li><li class="taxonomy-term-reference-1" rel="dc:subject"><a href="/tags/albany-county-surrogates-court" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">albany county surrogate&#039;s court</a></li><li class="taxonomy-term-reference-2" rel="dc:subject"><a href="/tags/spargo" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">spargo</a></li><li class="taxonomy-term-reference-3" rel="dc:subject"><a href="/tags/new-york-state-court-appeals" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">New York State Court of Appeals</a></li></ul></div><div class="easy_social_box clearfix vertical easy_social_lang_und">
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</div></div></div>Thu, 12 Jun 2014 19:26:49 +0000reporter3199 at http://www.altamontenterprise.comGas-drilling cases heard in highest courthttp://www.altamontenterprise.com/news/regional/06052014/gas-drilling-cases-heard-highest-court
<div class="field field-name-field-author field-type-taxonomy-term-reference field-label-hidden">by <a href="/author/marcello-iaia" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Marcello Iaia</a></div><div class="field field-name-field-images field-type-field-collection field-label-hidden"><div class="field-items"><div class="field-item even"><div class="entity entity-field-collection-item field-collection-item-field-images clearfix" about="/field-collection/field-images/2359" typeof="">
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<div class="field field-name-field-image field-type-image field-label-hidden"><div class="field-items"><div class="field-item even"><a href="http://www.altamontenterprise.com/sites/default/files/styles/full/public/DSC02632_0.JPG?itok=t5DfsUQf" rel="lightbox[field_image][]" title=""><img typeof="foaf:Image" src="http://www.altamontenterprise.com/sites/default/files/styles/large/public/DSC02632_0.JPG?itok=kZaX1uFt" width="300" height="299" alt="" /></a></div></div></div><div class="field field-name-field-image-description field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>The Enterprise — Marcello Iaia</p>
<p><strong>Thomas West</strong> answers reporters’ questions with his back against a column in the Court of Appeals rotunda Tuesday afternoon. West, of The West Firm, represents Mark S. Wallach, a trustee of the now bankrupt Norse Energy Corp., USA, which owned oil and gas leases in Dryden, N.Y. Speaking before the court, West and Scott Kurkoski, of Levene Gouldin &amp; Thompson LLP, said decisions on where natural-gas development could occur by individual towns would create uncertainty that would prevent the larger and more prudent gas companies from investing in the state. </p>
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<div class="field field-name-field-image field-type-image field-label-hidden"><div class="field-items"><div class="field-item even"><a href="http://www.altamontenterprise.com/sites/default/files/styles/full/public/DSC02627.JPG?itok=Xv68yhVC" rel="lightbox[field_image][]" title=""><img typeof="foaf:Image" src="http://www.altamontenterprise.com/sites/default/files/styles/large/public/DSC02627.JPG?itok=05jSPCSG" width="300" height="368" alt="" /></a></div></div></div><div class="field field-name-field-image-description field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>The Enterprise — Marcello Iaia</p>
<p><strong>John J. Henry</strong> of Whiteman Osterman &amp; Hanna LLP confers outside the courtroom of the Court of Appeals on Tuesday just after he argued that state law does not preempt local zoning powers regarding the gas and oil industry. He represented the town of Middlefield, which has prohibited natural-gas development through local law. Henry’s counterpart in a similar case, Deborah Goldberg of Earthjustice, represented the town of Dryden and its town board. </p>
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</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p>ALBANY — In a lively session at the Court of Appeals Tuesday, judges honed the arguments determining whether local laws prohibiting gas-extraction are trumped by state law.</p>
<p>Four lawyers — facing off in two separate cases — pitted the statewide importance of efficient, comprehensive energy development against local zoning powers.</p>
<p>“We have to agree that there are important state interests that sometimes the not-in-my-backyard mentality will always (oppose),” attorney Scott Kurkowski told the court. He represents Cooperstown Holstein Corporation — a farm that wants to lease land for oil and gas development.</p>
<p>“All I’m saying to you is, there’s a flip side to that argument, which is, you don’t bulldoze over the voice of the people in individual municipalities who want to be heard about how they live their lives,” Chief Judge Jonathan Lippman said, concluding an hour of oral arguments. “So, I'm not taking either side. What I’m saying to you is, we get it, we get your policy arguments, and we get their policy arguments, too. The question which we have to determine — what did the representatives of the people who ultimately have that power actually do? — and we’ll try and make that decision.”</p>
<p>While the state government has held back for several years on finalizing regulations in order to study the gas-extraction process of high-volume hydraulic fracturing, towns across the state have voted to support or oppose it in some form. According to fracktracker.org, 75 municipalities have banned hydraulic fracturing and 102 have done so temporarily by passing moratoria.</p>
<p>The process forces large volumes of water, along with particles and chemicals, deep and laterally underground to fracture shale and release the gas inside.</p>
<p>Locally, all four Hilltowns have cautiously progressed toward addressing the process, remaining uncertain about what the state will decide. The southwestern corner of Albany County sits over the gas-rich Marcellus Shale formation that has been drilled in nearby Pennsylvania. Prospects for gas development are much greater in the Southern Tier region of New York than in Albany County. Marcellus doesn’t quite reach Guilderland, which has banned the process.</p>
<p>In a unanimous ruling, the state’s middle-level Appellate Court, Third Judicial Department affirmed the Tompkins and Otsego County supreme courts’ decisions to dismiss cases brought against the towns Dryden and Middlefield for prohibiting gas-drilling and related activities in their zoning ordinances.</p>
<p>The judges of the state’s highest court, which deals with new legal territory, are deciding an appeal to reverse the lower-court decisions.</p>
<p>The plaintiff against Dryden was once Norse Energy Corp., USA, which bought oil and gas leases in the town and has since gone bankrupt. Cooperstown Holstein Corporation entered into oil and gas leases and sued the town of Middlefield for its zoning prohibition.</p>
<p>The top court’s decision is expected by the end of June at the earliest but could come later.</p>
<p>The four lawyers arguing on Tuesday presented different readings of the state’s Oil, Gas and Solution Mining Law, which says, “The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.”</p>
<p>When asked by Lippman how municipalities can have a say in what happens with hydraulic fracturing, attorney Thomas West said they can regulate their local roads. That would include dictating weight limits, routes, and the schedule of traffic on local roads, West said. He and Kurkoski argued that the legislature allowed municipalities only to regulate roads and real property, leaving all other matters, including zoning, superseded by the state.</p>
<p>Representing the town of Dryden and its town board, Deborah Goldberg argued that the state law regulates the gas and oil industry, its technical operations and activities — not land use. She said the law is silent on zoning.</p>
<p>“We rely on the principle that there has to be a clear expression of intent here,” Goldberg said. “And, when the law is silent, that this court must find that there is an ambiguity at best as to the intent of the legislature and, when there is an ambiguity as to the intent of the legislature, which will find there is no intent to preempt.”</p>
<p>Goldberg cited a distinction between the regulation of business and the regulation of land use. The town’s zoning power is limited to the surface, Goldberg said, and zoning to prohibit horizontal drilling underneath a town that doesn’t want it is superseded by the state.</p>
<p>West acknowledged that, if the court decided not to reverse the decisions, his client would have to petition the legislature for a statute that clearly overrides local zoning laws. He told <em>The Enterprise</em> afterward that, without statewide regulation, larger companies wouldn’t invest in New York. For the municipalities in the gas-rich Southern Tier, he said, smaller companies might have host agreements with those towns.</p>
<p>Proponents of hydraulic fracturing point out that natural gas, a fossil fuel, is a widely available domestic resource and burns more cleanly than petroleum and coal. It is increasingly used for electricity generation. This week, the federal Environmental Protection Agency announced new rules intended to cut carbon-dioxide emissions at coal-burning plants by 30 percent overall by 2030.</p>
<p>“I can tell you that if these decisions are not reversed, and we leave this to our 932 towns to make decisions about the energy policy in New York, we won’t be able to do it,” Kurkoski said of meeting the demands of the new rule.</p>
<p>He argued that individual town decisions conflict with the comprehensive interest the state has in an overriding energy policy.</p>
<p>As to the state law’s policy statement, which describes the need to have a vibrant energy policy for the public interest while avoiding waste, Goldberg pointed to other states that allow local controls, such as Texas and Oklahoma.</p>
<p>“This industry figures out where the lay of the land is and it manages to accommodate itself and do very well,” said Goldberg.</p>
</div></div></div><div class="field field-name-post-date field-type-ds field-label-inline clearfix"><div class="field-label">Post date:&nbsp;</div><div class="field-items"><div class="field-item even">June 5, 2014</div></div></div><div class="field field-name-field-tags field-type-taxonomy-term-reference field-label-inline clearfix"><h3 class="field-label">Tags: </h3><ul class="links inline"><li class="taxonomy-term-reference-0" rel="dc:subject"><a href="/tags/hydrofracking" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">hydrofracking</a></li><li class="taxonomy-term-reference-1" rel="dc:subject"><a href="/tags/new-york-state-court-appeals" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">New York State Court of Appeals</a></li></ul></div><div class="easy_social_box clearfix vertical easy_social_lang_und">
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</div></div></div>Thu, 05 Jun 2014 18:39:00 +0000admin3146 at http://www.altamontenterprise.comTop-court judge and Guilderland native honoredhttp://www.altamontenterprise.com/news/guilderland/02062014/top-court-judge-and-guilderland-native-honored
<div class="field field-name-field-author field-type-taxonomy-term-reference field-label-hidden">by <a href="/author/lisa-nicole-viers" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Lisa Nicole Viers</a></div><div class="field field-name-field-images field-type-field-collection field-label-hidden"><div class="field-items"><div class="field-item even"><div class="entity entity-field-collection-item field-collection-item-field-images clearfix" about="/field-collection/field-images/1547" typeof="">
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<div class="field field-name-field-image field-type-image field-label-hidden"><div class="field-items"><div class="field-item even"><a href="http://www.altamontenterprise.com/sites/default/files/styles/full/public/Graffeo13.jpg?itok=7ilKvQ3D" rel="lightbox[field_image][]" title=""><img typeof="foaf:Image" src="http://www.altamontenterprise.com/sites/default/files/styles/large/public/Graffeo13.jpg?itok=mVoRgHhi" width="300" height="389" alt="" /></a></div></div></div><div class="field field-name-field-image-description field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><em>Photo provided by the New York State Court of Appeals.</em></p>
<p><em><strong>"I think it's important</strong> that we encourage talented young people to look into government careers," said Judge Victoria Graffeo, who recently won the New York State Bar Association's 2014 Excellence in Public Service Award.</em></p>
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</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p>GUILDERLAND — Victoria Graffeo was busy last week. On Jan. 28, she received the 2014 New York State Bar’s Excellence in Public Service Award. The next day, she was an honoree at a dinner hosted by the Trial Lawyers Section and Torts, Insurance, and Compensation Law Section.<br />
“I had two speeches and two awards last week,” said Graffeo, an associate judge for the state’s highest court, the New York State Court of Appeals.</p>
<p>Graffeo’s success in her law career comes from a history that didn’t always include judicial aspirations. After attending Schenectady and Guilderland public schools, she went on to the State University College at Oneonta.</p>
<p>“I actually went to college to be a secondary social science teacher,” said Graffeo. But, as professors encouraged her to think about law school, her ambitions changed.</p>
<p>“I thought it would be a great time to be a woman in law,” she said, “which it was in the late ’70s.”</p>
<p>Graffeo then attended and graduated from Albany Law School at a time when more women were entering the formerly male-dominated bastion.</p>
<p>After four years of private practice, she entered government service in 1982, working as assistant counsel to the New York State Division of Alcoholism and Alcohol Abuse. She then worked as Floor Counsel to the Assembly Republic Conference. After 10 years at that post, she was given the job of chief counsel.</p>
<p>Later, she was appointed by the attorney general as the state’s solicitor general, managing state and federal appellate case law until being appointed by Governor George Pataki in 1996 to fill a vacancy on the State Supreme Court, and was later elected to a full term. In 1998, Graffeo became an associate justice of Appellate Division, the middle level in the state’s three-tiered court system. Pataki appointed her to the Court of Appeals in 2000 for a 14-year term.</p>
<p>The court is comprised of a chief judge and six associate judges and, as the state’s highest court, generally focuses on broad issues.</p>
<p>“Every month, there’s really interesting cases,” she said.</p>
<p>Graffeo doesn’t attribute her success to only herself, but her peers as well.</p>
<p>“I don’t think that anyone’s success in government is based on individual effort,” she said. “It’s a collaborative effort.”</p>
<p>Graffeo attended middle and high school in Guilderland, where her entire family, and she, still resides.</p>
<p>“It’s home for us,” she said.</p>
</div></div></div><div class="field field-name-post-date field-type-ds field-label-inline clearfix"><div class="field-label">Post date:&nbsp;</div><div class="field-items"><div class="field-item even">February 6, 2014</div></div></div><div class="field field-name-field-tags field-type-taxonomy-term-reference field-label-inline clearfix"><h3 class="field-label">Tags: </h3><ul class="links inline"><li class="taxonomy-term-reference-0" rel="dc:subject"><a href="/tags/victoria-graffeo" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Victoria Graffeo</a></li><li class="taxonomy-term-reference-1" rel="dc:subject"><a href="/tags/guilderland" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">guilderland</a></li><li class="taxonomy-term-reference-2" rel="dc:subject"><a href="/tags/new-york-state-court-appeals" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">New York State Court of Appeals</a></li><li class="taxonomy-term-reference-3" rel="dc:subject"><a href="/tags/state-bar-award" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">State Bar Award</a></li></ul></div><div class="easy_social_box clearfix vertical easy_social_lang_und">
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</div></div></div>Thu, 06 Feb 2014 20:35:31 +0000reporter2152 at http://www.altamontenterprise.com